mapping the boundaries of government secrecy in Canada

IS CABINET CONFIDENTIALITY REASONABLE?

Social scientist Alex C. Michalos was among those who questioned the notion of cabinet confidentiality in the 1970s. (Photograph by University of Northern British Columbia)

If you think about it, the whole notion of cabinet confidentiality is pretty anti-democratic. It means Canadians don’t have any right to know what happens inside the government’s most important decision-making body. We only have a right to know what our government lets us know. Moreover, members of cabinet who disagree with the decisions it makes have to pretend they agree in public. And that means they may have to lie to the very people who elected them.

Yet, in Canada, questioning cabinet confidentiality rarely seems to happen. And, when it does, such questioning is often branded as radical at best and foolish at worst. Indeed, in 1979, the eminent Canadian political scientist Donald V. Smiley observed, “No informed person suggests that the proceedings of the cabinet should be published.”1Donald V. Smiley, “Freedom of Information: Rationales and Proposals for Reform,” in Freedom of Information: Canadian Perspectives, ed. John D. McCamus, 1981), 16.

However, between the mid-sixties and early eighties, informed people were actually making such suggestions. Among them was social scientist Alex C. Michalos. In a brief prepared for the Ontario Commission on Freedom of Information and Individual Privacy, Michalos, who was then a philosophy professor at the University of Guelph, took issue with the claim that differences between cabinet ministers must be resolved in the strictest confidence, writing:

This is assertion without justification. It is possible to have ‘stability and cohesion’ while admitting honest difference. Does anyone expect a monolithic set of views out of a Cabinet? It seems to be greater ‘stability and cohesion’ would be displayed by the honest display of differences of opinion which are occasionally comprised in the public interest. To pretend that there are no disagreements within an organization is dishonest in the first place, and self-destructive in the second. Instead of preaching rational debate and accommodation, we will be preaching authoritarianism and control. Instead of displaying a model of reasonable people struggling over difficult problems with conflicting but legitimate points of view, we will be displaying a model of rigid people struggling to control diversity with secrecy. How can this help? How can we in good conscience give this example to our children and our neighbours?2Alex C. Michalos, “A Brief to the Commission on Freedom of Information and Individual Privacy.” (unpublished submission), July 1977.

How indeed? Yet, that’s exactly what we’ve continued to do. And it’s well-past time for Canadians to change that.

Chris, thanks so much for the reference! I’ll be sure to take a look. However, that said, in the records I’ve reviewed, I don’t see a necessity for it. Internally, there are three arguments against transparency. First, it might compromise the efficiency of government. Second, it might threaten government officials electability or continued employment as a result of Canada’s competitive political system. And, third, it might embarrass them. None of these seem especially compelling to me. Moreover, none of these claims have really been tested. And I think we need to, at the very least, challenge those claims.

But Craig, I could shake my head too. The logical extension of what you’re saying is that democracy in Canada has to happen in the dark between elections. And if it happens in the dark, its not democracy. If, as Canadians, we’re fine with that, that’s fine. But we need to be honest with ourselves about what’s going on here.

One aspect of the cabinet-confidence exclusion (Sec. 69) under the Access to Information Act that needs fixing is the lack of independent review. PCO and its lawyers can declare a record to be a cabinet confidence without worry of challenge. All the Information Commissioner of Canada can do is demand a certificate from PCO attesting to the Section 69 exclusion. She cannot examine the records herself to determine whether the Section 69 declaration was correct. With no challenge function to keep them in check, PCO and its lawyers have over the years widened circle of records deemed cabinet confidences, including records containing information that may, at some undetermined future date, be considered by cabinet. This is the insidious nature of a power imbalance in the control of information: the party with unchecked power will exploit the imbalance.

ABOUT THE AUTHOR

Sean Holman is an associate professor of journalism at Mount Royal University in Calgary and a freedom of information researcher. A former investigative journalist covering British Columbia politics, Holman is now pursuing a doctorate at the University of Birmingham where he is writing a dissertation on the history of the federal government’s Access to Information Act. READ MORE

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